THE PEOPLE &C., RESPONDENT, v. JOSE O. HERNANDEZ, APPELLANT.

93 N.Y.2d 261 (1999).May 6, 1999

This opinion is uncorrected and subject to revision before publication in the New York Reports. Judah Serfaty, for appellant. Robert A. Schwartz, for respondent.

BELLACOSA, J.:

This appeal stems from defendant's conviction for
attempted rape and sexual abuse, each in the first degree.
Defendant raises three issues: (1) the trial court's denial ofhis lawyer's challenge for cause of a potential juror, a New York
State legislator; (2) a jury instruction defining attempt as a
"substantial step" toward the completion of the crime (rather
than specifying that the act come "dangerously close" to
completion of the crime); and (3) the appealability, as part of
the judgment of conviction, of his certification as a "sex
offender." The last issue presents a plausible and ultimately
persuasive claim to appellate review that requires modification
of the order appealed to us, and remittal to the Appellate
Division. Defendant's first two arguments are without merit.

The conviction in this case resulted from an incident
that occurred in February 1995. Defendant accosted a woman
outside her home, told her that he wanted to "make love" to her,
that he would kill her if she made a noise, and then choked her
when she cried out. The victim feigned unconsciousness as
defendant dragged her toward the basement of her apartment
building. He touched her vaginal area through the outside of her
clothing. At the door to the basement, the victim broke free,
ran to and was admitted into a neighbor's apartment. The
neighbor called the police, who arrived and transported the
victim and her husband to the hospital. Meanwhile, defendant was
discovered hiding in bushes near the apartment building when
police officers canvassed the area. After returning to her
apartment from the hospital, the victim was able to identify
defendant, who was still held at the scene. Defendant wasindicted for attempted rape and sexual abuse, both in the first
degree.

At jury selection, defendant asserted a challenge for
cause. The prospective juror, a State legislator, answered
various questions about his views and position on crime and
whether his vote, if he were a juror in the case, might become a
political liability. The court denied the challenge, and a
defense peremptory challenge ultimately removed the legislator
from the case as a possible juror.

At the jury instruction phase of the trial, the court
read the attempt instruction from the version of the Criminal
Jury Instructions Manual in effect at the time:

"Such conduct does not have to be the last
act necessary to effect the commission of the
rape but must be conduct which constitutes a
substantial step towards the commission of
the rape. The required conduct must be
related to and directed toward the
accomplishment of the rape, conduct which
goes beyond mere preparation and planning,
conduct so related to the commission of the
rape that in all reasonable probability the
rape would have been committed but for some
interference or intervention" ( see, 2 CJI[NY]
PL 110.00, at 4650).

Defendant objected on the ground that the court should not have
stated that "attempt" would be fulfilled by a "substantial step"
toward the rape, but rather that conduct "dangerously close" to
completed rape should have been the standard.

The jury rendered a guilty verdict, and sentencing
occurred on April 1, 1996. The court's sentence was comprised offive elements: (1) time to be served; (2) a surcharge and crime
victim assistance fee on the attempted rape count; (3) a
permanent order of protection for the victim; (4) certification
that defendant was a sex offender pursuant to Correction Law
Article 6C, the Sex Offender Registration Act (SORA, commonly
known as "Megan's Law"); and (5) a finding of no restitution.

At sentencing, defendant raised an Ex Post Facto
objection to the SORA certification, claiming that the crime was
committed prior to the enactment of the SORA in January 1996. At
the close of the sentencing proceeding, the clerk advised
defendant, "you have the right to appeal from this sentence and
these proceedings."

At the Appellate Division, defendant raised the same
three points he now asserts before this Court. In affirming the
judgment of conviction, the Appellate Division did not directly
address defendant's jury selection and instruction arguments (__
AD2d __). It also avoided the merits of the SORA Ex Post Facto
claim. Instead, merely citing People v Stevens (91 NY2d 270),
that court held the SORA certification not reviewable on direct
appeal from the judgment. A Judge of this Court granted leave to
appeal from the Appellate Division order.

I.

Defendant urges that his certification as a sex
offender should be appealable as part of a direct appeal from the
judgment of conviction. The remedy he seeks, if entitled to thisappellate step, is remittal to the Appellate Division for
consideration of the constitutional objection to SORA.

The term "certification" appears only in Correction Law § 168d, which addresses the "duties of the court," as follows:

"Upon conviction the court shall certify that
the person is a sex offender and shall
include the certification in the order of
commitment. The court shall also advise the
sex offender of the duties of this article."

There is no other mention of the term "certification" in
Correction Law Article 6C, and the word is not defined in the
statute ( see, Correction Law § 168a). The topic generally does
not appear as the subject of remarks in the Bill Jacket,
commentary or legal articles, which tend to focus on the
registration and notification elements that must be "determined"
under SORA ( see generally, Bill Jacket, L 1995, ch 192;
Bonacquist, Practice Commentaries, McKinney's Cons Laws of NY,
Book 10B, Correction Law art 6C, 1999 Pocket Part, at 8586; see
also, Note, The Fate of "Megan's Law" in New York, 18 Cardozo L
Rev 181 [1996]). One New York State case addresses
"certification" in a different procedural context ( People v
Griffin, 171 Misc 2d 145 [Sup Ct, NY County 1996]). The
precedents of this Court have not reviewed "certification", but,
rather, narrowly address the subsequent phase of "risk level
determination" ( see, People v Stevens, 91 NY2d 270, supra). We,
therefore, consider the issue now urged on a virtual tabula rasa. It is a matter of first impression that must, nevertheless, be
fitted into the multifaceted legislative plan and into Stevens.

What we do know from the plain language of SORA is that
(1) the court shall certify that the person is a sex offender
upon conviction, and (2) the certification shall be included in
the order of commitment ( see, Correction Law § 168d). The
answer to the question before us is less plain. We are
ultimately persuaded, however, that "certification" is appealable
and reviewable as part of the judgment of conviction.

A. Certification Upon Conviction

"A judgment is comprised of a conviction and the
sentence imposed thereon and is completed by imposition and entry
of the sentence" (CPL 1.20[15]). "'Conviction' means the entry
of a plea of guilty to, or a verdict of guilty" (CPL 1.20[13]).
"'Sentence' means the imposition and entry of sentence upon a
conviction" (CPL 1.20[14]). A defendant may appeal to an
intermediate appellate court "as of right" from a judgment (CPL
450.10). These standard, elementary principles lay the
groundwork for the new appellate wrinkle presented by this case.

Here, defendant's certification was unmistakably part
of the court's final adjudication with respect to defendant's
crimes ( see, People v Lyday, 241 AD2d 950). The certification
was rendered in open court, together with other elements of
disposition  the surcharge assessment, the order of protection
and restitution determinations. They formed an integral part ofthe conviction and sentencing. The defendant was even advised by
the court clerk that he had the right to appeal from the entire
proceedings. While that statement and allinclusive
characterization cannot create rights or make procedural law, and
is not ipso facto dispositive of the issue, it helpfully
demonstrates that the "certification" was treated and deemed by
the court as part of the plenary adjudication of defendant's
conviction and sentence. It summed up the adjudication in the
whole and set the stage for a next act.

An examination of this Court's treatment of the other
elements of defendant's adjudication also provides useful
guidance for determining whether defendant's "certification"
should be deemed appealable as part of the judgment. In
particular, the statutory mandatory surcharge provision is
procedurally parallel to SORA's certification provision. The
surcharge section provides that "there shall be levied at
sentencing a mandatory surcharge and crime victim assistance fee
in addition to any sentence required or permitted by law" (Penal Law § 60.35[1] [emphasis added]). As with the SORA provision,
the duties of the court are prescribed in mandatory form. The
mandatory surcharge is levied at sentencing. The mandatory SORA
certification is effected by operation of law upon conviction and
is pronounced at sentence. Since both conviction and sentencing
are definitionally part of the judgment, the appealabilityreviewability of the SORA certification should enjoy equivalenttreatment to the surcharge component. This Court has itself
previously reviewed a constitutional challenge to the application
of the mandatory surcharge imposed pursuant to Penal Law § 60.35
( see, People v Barnes, 62 NY2d 702; see also, People v Consalvo, 89 NY2d 140 [reviewing an order of restitution imposed pursuant
to Penal Law § 60.27]).

The People, on the other hand, characterize SORA
certification as a nonsentence consequence of the conviction, a
feature they also refer to as merely regulatory. The People
additionally urge that appellate review of the dispositions
prescribed under the Penal Law is distinguishable from what
occurred here. This argument is unavailing because that
formalistic regimentation would categorically preclude
authorization for appellate review of SORA certifications merely
as a result of their being prescribed within the Correction Law.
We conclude that these positions and the reasons urged for them
are not supportable in these circumstances.

Even assuming that SORA certifications were deemed not
a part of the sentence, we are satisfied that they are certainly
part of the judgment. The mere fact that a component of the
judgment traces its source to the Correction Law, rather than
customarily to the Penal Law, cannot deprive the certification
component of its "judgment" quality ( compare, Vehicle and Traffic
Law § 1193[2] [authorizing "license sanctions"]). We know a
judgment, by its terms, is appealable (CPL 450.10), and that addscogency to our resolution of this issue in appellant's favor.
Assuming further, without deciding, that the goals of Article 6C
are merely regulatory, this classification should not divest an
aggrieved defendant of some legislatively authorized appellate
review.

Thus, the People's opposition to defendant's claim in
this regard does not withstand scrutiny. Otherwise, absurd and
inconsistent procedural anomalies could be engendered and
envisioned. Furthermore, the People's approach would exert an
elemental unfairness by depriving defendants, who are certified
in these circumstances, to entitlement to even one level of
appellate review for constitutional, substantive or procedural
irregularities or illegalities in that aspect of the case.

(B) Inclusion in the Order of Commitment

"Customarily, where a term of imprisonment is imposed,
an order of commitment will be issued" (Preiser, Practice
Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 380.60,
at 209). "[A] certificate of conviction showing the sentence
pronounced by the court, or a certified copy thereof, constitutes
the authority for execution of the sentence and serves as the
order of commitment" (CPL 380.60 [emphasis added]).

Pursuant to SORA, a defendant's "certification" must be
included in the order of commitment. The relevant consequence of
this requirement is that, pursuant to the statutory definition of
the order of commitment, the SORA "certification" must beincluded in the certificate of conviction. By making the SORA
certification an inescapable part of the conviction, the
Legislature may be deemed to have intended that "certification"
be appealable at least in these narrow circumstances, since it is
definitionally incorporated within the judgment itself.

Furthermore, CPL 380.60, which authorizes commitment
upon a "certificate of conviction," is derived from the former
Code of Criminal Procedure § 486. The former section
instructively and pertinently provided that the authority for
execution of a sentence was a certified copy of the entry of the
judgment; i.e., a "certificate of judgment" ( see, Preiser,
Practice Commentaries, supra, at 209).

(C) Distinguishment of People v Stevens

The Appellate Division ruling on this SORA issue rests
on an inapt extension of People v Stevens (91 NY2d 270, supra).
The narrow holding of that precedent is manifestly
distinguishable from the instant question. Stevens was actually
two jointly resolved appeals, both of which involved defendants
convicted of sex crimes and imprisoned long before the enactment
of SORA. Their respective releases from prison occurred after
the enactment of SORA, and risk level determinations were
assigned to them upon release. Unlike defendant in the instant
case, the Stevens defendants were never "certified" by the court
"upon conviction"  a temporal impossibility there.

Stevens deemed a risk level determination to be
"postsentence," rather than a resentence or amended sentence.
Risk level determinations thus fell into an appellate void, which
the Court eschewed filling in the absence of any legislative
prescription and authorization ( see, id., at 279). Stevens
summarized that "the adjudicatory power of the criminal court
ended with the imposition of a sentence of imprisonment," such
that the "risk level determinations are a consequence of
convictions for sex offenses, but are not a part of the criminal
action or its final adjudication" ( id., at 277).

Today's decision and case differ markedly from Stevens,
and, in a sense, today's holding should be viewed as a building
block on Stevens. Stevens carefully distinguished between the
risk level determination stage, which was "not a traditional,
technical or integral part of a sentence that somehow relates
back to or becomes incorporated into the antecedent judgment of
conviction", and a judgment, which melds a conviction with its
sentence ( People v Stevens, supra, at 276; see, CPL 1.20[15]).
Unlike the belated risk level determination in Stevens,
defendant's SORA "certification" here was actually and temporally
part of the judgment of conviction.

This distinction is key. It allows us to credit the
"procedural configuration" of the case for purposes of qualifying
this feature of the case for appellate review. It also, frankly,
points to a discrete procedural anomaly and potentialcomplication. It is possible that a "risk level determination"
may actually be made at the time of a sentencing, simultaneously
with "certification" ( see, Correction Law § 168d[2], [3]; People
v Kearns, __ AD2d __, 677 NYS2d 497 [2d Dept], lv denied 92 NY2d
1034). The People toss this proverbial wrench onto our modest
appellate track for this case. They argue that if the Court
deems "certification" reviewable on appeal because it was made at
the time of sentencing, then a risk level determination made at
the same time would have to be similarly reviewable  a clash
with the underpinnings of the Stevens analysis. Thus, a
simultaneous risk level determination might be deemed reviewable,
while one made at a date subsequent to sentence, such as upon a
defendant's release from prison, would not be reviewable under
Stevens. While this is a real conundrum, it does not derail our
holding.

We come to the conclusion that the arguable lack of
symmetry merely reemphasizes the need for plenary legislative
consideration of the appellate review possibilities of all these
intricate procedural tracks and timetables. SORA itself appears
to distinguish between risk level determinations made at the time
of sentencing and those made upon release from incarceration.
Thus, SORA itself could be interpreted as forging a divide in
procedural treatment between defendants who will be incarcerated
and those who will not ( see, People v Brown, 174 Misc 2d 941, 943
[Sup Ct, Bronx County 1997] ["in a nonincarceratory sentence,there is little need for the Board's recommendation"]; Doe v
Pataki, 120 F3d 1263, 1268 [2d Circuit 1997] cert denied __ US
__, 118 S Ct 1066 ["For all sex offenders sentenced or released
from a state correctional facility or mental institution * * *
the court cannot make (the risk level) determination until it has
received from the Board a recommendation"]).

In light of this apparent procedural distinction, SORA
could also be read to indicate that those who will not be
incarcerated are not "certified." The only mention of
"certification" appears in conjunction with the requirement that
it be included in the order of commitment. Thus, it may be that
an order of commitment and, therefore, "certification" is
unnecessary in the case of a defendant who will not be
incarcerated.

We point to this illustration to indicate only that it
may well be possible that the application of SORA to one
defendant may be appealable, while application to another
defendant may not. We need not neatly button up all these
variations. Since it is clear that the defendant in this case
was sentenced to incarceration and was certified as a sex
offender by the sentencing court as part of the final judgment,
we need decide only that set of circumstances, and, as to others,
we simply call attention to the potential permutations.

A modification of the order of the Appellate Division
is thus required, and a remittal to that court will allow for
firsttime appellate consideration of this issue.

II.

The trial court did not err in denying the challenge
for cause of the potential juror, who happened to be a
legislator. The theory of this argument would create a
functionally per se disqualification for elected officials,
despite recent legislation that specifically repealed these
categorical exemptions from jury service ( see, Mem of Off of Ct
Admin, 1995 McKinney's Session Laws of NY, at 2725). In any
event, nothing in the record demonstrates that the trial court
erred as a matter of law or otherwise abused its sound discretion
in denying the "for cause" challenge.

III.

Also unavailing is defendant's argument that the trial
court's jury instruction on the definition of "attempt"
constituted reversible error. The jury instructions, taken in
their entirety, correctly conveyed the substance and gist of the
Rizzo standards and guidelines ( People v Rizzo, 246 NY 334) and
of the current Criminal Jury Instructions (2 CJI[NY] PL 110, at
10011003).

Rizzo cautioned that an "attempt" must be determined by
a casebycase application of the facts under the pertinent legal
specifications ( see, People v Rizzo, supra, at 337338; see also, People v Acosta, 80 NY2d 665, at 670671; People v Mahboubian, 74 NY2d 174, at 191). Here, defendant's only exception to the
instruction was that the descriptive phrase "substantial step"
was used, rather than "dangerously close" to the commission of
the crime. The lone use of the nowsupplanted and disfavored
phrase "substantial step," in the context of the facts of this
case and the entirety of the jury instructions rendered, did not
effect a cognizable legal error, warranting a new trial remedy.

Accordingly, the order of the Appellate Division should
be modified and the case remitted to that court for further
proceedings in accordance with this Opinion, and, as modified,
the order should otherwise be affirmed.

* * * * * * * * * * * * * * * *

*

Order modified by remitting to the Appellate Division, Second
Department, for further proceedings in accordance with the
opinion herein and, as so modified, affirmed. Opinion by Judge
Bellacosa. Chief Judge Kaye and Judges Smith, Levine, Ciparick
and Wesley concur. Judge Rosenblatt took no part.